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Abstract

The dominant story of American political process and criminal law is one of democratic dysfunction. Criminal law is a distinctive issue for legislatures and democratic politics generally. Legislators respond to strong majoritarian preferences that make votes against crime creation—or votes to repeal antiquated crimes—politically implausible. Thus criminal law is “one-way ratchet”: it expands but does not contract. On this account, America’s excessive criminal codes are products of structural failures in political process and democratic institutions.

Yet this story fails to account for much of American criminal law policy and practice. As this article documents in the first systematic study of criminal law legislation in state legislatures, those bodies in fact decline to enact bills proposing new crimes or increased punishments routinely, probably more often than they decline bills on other topics. Further, they repeal longstanding criminal statutes and reduce punishments. Interest groups and popular opinion often support and sometimes drive these reforms, which means both that democratic sentiment is not solely in favor of ever-increasing harshness and that democratic processes can accurately respond to that sentiment. Legislatures criminalize very little conduct that most people think should be completely unregulated, and unpopular or silly offenses left on the books are routinely nullified by democratically accountable prosecutors or narrowed by courts. As a result, criminal law’s reach into most citizens’ lives is almost surely less in most respects than in the past.

More than ninety percent of criminal law enforcement is state rather than federal, and state criminal justice systems on the whole more democratically responsive than the federal system. Many state legislatures recently have proven better at devising procedural frameworks to harness expertise in the reform of criminal law and punishment policy and to moderate risks of dysfunctional policymaking. Coupled with restraints from other branches, substantive overcriminalization, judged against a baseline of democratic preferences, is a modest problem in the states. And what overcriminalization exists has little effect on criminal justice’s well recognized problems such as excessive plea bargaining, racial disparities, and high incarceration rates.